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State v. Underdue

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUDY V. UNDERDUE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-04884.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendant Rudy V. Underdue appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1). Defendant was sentenced to twenty-seven years in prison on the aggravated manslaughter conviction, with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and two concurrent four-year sentences on the other offenses.*fn1

Defendant raises the following points on appeal:

POINT I

THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

(A) SINCE THE MOTION COURT FOUND THAT THE "FOUR CORNERS" OF THE AFFADAVIT DID NOT PROVIDE JUSTIFICATION FOR THE INITIAL WARRANTLESS ENTRY INTO 1135 SOUTH 8TH STREET, THE MOTION COURT ABUSED ITS DISCRETION IN RULING THAT IT WOULD CONSIDER THE INFORMATION CONTAINED IN PARAGRAPHS (V), (W), AND (X).

(B) THE MOTION COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO ELICIT TESTIMONY SUPPLEMENTAL TO THE AFFIDAVIT.

(C) THE MOTION COURT ABUSED ITS DISCRETION IN APPLYING THE "EMERGENCY AID" EXCEPTION TO JUSTIFY THE WARRANTLESS ENTRY BY INVESTIGATOR WILSON.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE STATEMENTS HE MADE TO THE POLICE IN FLORIDA ON SEPTEMBER 7, 2003 AND IN THE PROSECUTOR'S OFFICE ON SEPTEMBER 17, 2003.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IT COULD REJECT THE STIPULATIONS THAT WERE READ INTO THE RECORD. (NOT RAISED BELOW)

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT V

THE 27 YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

(A) IMPOSITION OF A BASE SENTENCE OF 27 YEARS ON THE DEFNDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.

(B) IN IMPOSING SENTENCE, THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PROVIDE THE RIGHT OF ALLOCUTION.

POINT VI

COMMENTS MADE BY THE TRIAL COURT ABOUT AN IMPENDING SNOW STORM COERCED THE JURY INTO REACHING A VERDICT. (NOT RAISED BELOW)

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter to the trial court for re-sentencing solely because defendant was not given the opportunity to allocute at the time of his sentence.

I.

A.

On August 31, 2003, Investigator Diane Wilson of the Camden County Prosecutor's Office applied to a judge of the Superior Court for a search warrant to conduct "[a] complete forensic search" of 1135 South 8th Street, Camden, later revealed to be defendant's residence. In her affidavit, she noted that on August 30, Camden police responded to a report of blood dripping from a 1990 gray Honda Accord parked at Broadway and Mt. Vernon Street. The police noticed an odor of decomposition and numerous flies buzzing around the trunk, and when they opened it, they discovered a human body, later identified as Richard Mora-Batista, wrapped in a sheet. He had been shot multiple times.

Wilson detailed how police discovered the victim's name through a missing persons report filed in Bronx, New York, by the victim's girlfriend, Letty Bonilla. Bonilla went to Camden and when interviewed by the police told them that Mora-Batista went to Camden on August 26 to meet with someone known to her only as "Rudy." Bonilla pointed out 1135 South 8th Street as Mora-Batista's intended destination. According to Bonilla, after squabbling over the price of a kilogram of cocaine that he had supplied to Rudy the day earlier, Mora-Batista went to Camden to reclaim the drugs armed with a handgun. Another witness who accompanied Bonilla, Diocelin Berroa, told the police that the victim was using the gray Honda Accord in Camden.

Police officers spoke to a witness, Luis Legarde-Rios, who lived at 1137 South 8th Street and who identified a photo of the victim as someone who frequently visited the house next door in a 1990 Honda Accord. Legarde-Rios claimed that Mora-Batista usually carried packages into the house, stayed only ten to fifteen minutes, and always left. On August 26, however, he saw Mora-Batista arrive as usual but never saw him leave the house. Later, he saw two other males enter the house. Legarde-Rios left for a short time, and when he returned to his home sometime late in the afternoon of August 26, his neighbor, Rudy, gave him his cell phone number and asked that Legarde-Rios call if he saw any investigative activity by the police in the neighborhood.

Legarde-Rios then saw Rudy and his girlfriend, Vicki, whose full name was Victoria Caban, place two large boxes in a white truck owned and driven by Vicki. On August 29, Legarde-Rios saw Rudy and two other men arrive at 1135 South 8th Street in the white truck, and he overheard Rudy tell the men to remove the living room carpet and call him when they were done. LegardeRios saw Rudy return later that evening, change the locks on the front door of the house, and carry the rolled-up carpet into the white truck. Wilson interviewed the maintenance supervisor for the landlord of 1135 South 8th Street who told her that new carpeting had been installed in the apartment approximately one month earlier.

Also on August 29, the police spoke to Vicki's former boyfriend who told them that she had told him she was nervous and scared because something had happened at the house. Wilson learned this on August 31, and being concerned for Vicki's well-being, she proceeded to 1135 South 8th Street. In the final three substantive paragraphs of the affidavit, Wilson described what happened when she and several Camden police officers went to the premises.

V. . . . There was no answer in response to a knock at the front door at which time all proceeded to the rear of the residence where the back door was noted to be partially open. Because the partially opened door was suspicious in light of all of the circumstances known to the law enforcement officers present, we entered the residence after announcing our presence with weapons drawn searching for [Vicki], calling out her name as we proceeded.

W. Proceeding from room to room we ascertained that there was no one present within the residence.

X. While moving through the residence the affiant noted that the living room was not carpeted, and that in the one [] upstairs bedroom, a fitted sheet that appeared to match the flat sheet in which the body of Richard Mora-Batista had been wrapped, was on the bed with items apparently gathered within it. Nothing within the residence was touched or disturbed, and, after ascertaining the [Vicki] was not within the residence, all police officers immediately withdrew through the rear.

The search warrant was issued, and on September 1, 2003, Wilson and other investigators returned to the premises and conducted a complete forensic search, seizing the bed sheet and other evidence.

Defendant was ultimately indicted and charged with MoraBatista's murder and other related offenses. Defendant's motion to suppress was heard on August 8, 2006. He argued that Wilson's warrantless entry into the premises was unjustified and that if the information contained in paragraphs V., W., and X. was excised from the affidavit, the State had failed to demonstrate probable cause for the issuance of the warrant. The judge agreed that based upon "the four corners of the document," Wilson's warrantless entry of the premises could not be justified; however, he also concluded that "based upon the affidavit without that warrantless intrusion evidence included," the affidavit contained sufficient probable cause to justify the issuance of the warrant.

Over the objection of defendant, however, the judge offered the State the opportunity to present Wilson's testimony to supplement the affidavit and establish justification for the warrantless entry of 1135 South 8th Street. In all material respects, Wilson's testimony regarding the homicide and the investigation she conducted prior to August 31 mirrored what was contained in the affidavit. She further testified that on August 31, sometime between 10:00 a.m. and 11:00 a.m., she went to the premises believing Vicki's life was in danger. After knocking at the front door and receiving no response, she moved to the rear door, which was ajar, and observed blood on the "outside back walls of the house." Wilson entered the house with her gun drawn and proceeded to go from room to room looking for Vicki. In doing so, in one of the bedrooms, she saw a sheet that matched the one wrapped around Mora-Batista's body.

Wilson further testified that Camden police had gone to the premises on August 29, but no one was home. She went there on August 30, after dark, and the doors were closed and no one was home. She was unable to notice whether there was any blood on the premises' walls at that time.

During direct questioning from the judge, however, Wilson acknowledged that prior to the warrantless entry on August 31, she knew only what was contained in paragraphs A through I of the affidavit which was based primarily on information supplied by the Camden police. The information contained in the subsequent paragraphs was obtained after she entered the premises, left, secured the house, and interviewed the various witnesses, i.e., Vicki's former paramour, the landlord's maintenance supervisor, and, to a further extent, Legare-Rios, thus obtaining the information contained in paragraphs J through U of the affidavit. Wilson expressed her belief that based solely upon what was contained in paragraphs A through I, she would not have applied for a search warrant, "[b]ecause at the time I did not believe that a crime had occurred in that residence." However, after seeing the blood, entering the premises, and observing the sheet and the missing carpet, Wilson believed she had probable cause for the search warrant even without the further interviews she conducted. She believed the information contained in the other paragraphs of the affidavit "further . . . support[ed] [her] application and [her] suspicions . . . ."

Defendant renewed his argument that in light of Wilson's testimony, after excising the paragraphs regarding the warrantless entry of defendant's home and the more substantial interviews of the witnesses that followed, the affidavit lacked probable cause. The State argued that Wilson's entry into the premises was justified by the "[e]mergency [a]id [d]octrine." Alternatively, the State argued that even if the warrantless entry was improper, Wilson would have conducted the further interviews of the witnesses and that information would have nonetheless found its way into the affidavit, thus supplying requisite probable cause. In short, the State contended probable cause was supplied from "an independent source" unrelated to the warrantless entry.

The judge found Wilson to be a credible witness. He reviewed the contents of paragraphs A through I of the affidavit and observed "there's a reasonable basis to believe that [those paragraphs] might have . . . supported a search warrant." However, without concluding definitively that was the case, the judge noted that Wilson knew about Legarde-Rios because he "had previously been interviewed by the [S]tate prior to the entry [of 1135 South 8th Street]," and he "had all this information that had nothing whatsoever to do with the entry into the premises . . . ." The judge reaffirmed his earlier finding that probable cause existed for the issuance of the warrant based on all the information obtained independent of Wilson's entry into the premises. The judge then concluded that the warrantless entry was also justified under the emergency aid doctrine, citing State v. Frankel, 179 N.J. 586, cert. denied sub nom. Frankel v. New Jersey, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). He denied defendant's motion to suppress.

B.

Defendant advances three arguments in support of the claim that his motion was improperly denied. First, he argues that since the judge initially determined that the information Wilson included in the affidavit itself did not justify the warrantless entry of the premises, it was error for the judge to consider paragraphs V., W., and X. of the affidavit in determining whether probable cause existed. Defendant next argues that the judge abused his discretion in "permitting the state to elicit testimony supplemental to the affidavit." Lastly, defendant contends the judge abused his discretion in finding Wilson's entry into the premises was justified under the emergency aid doctrine exception to the warrant requirement.

Defendant misapprehends much of the judge's ruling. It is apparent that the judge initially did not consider the contents of paragraphs V., W., and X. at all, and made his decision as to probable cause without any reliance upon the "warrantless intrusion evidence" contained in those three paragraphs of the affidavit. Moreover, even after Wilson testified, the judge concluded that the balance of the information contained in the affidavit, excising those three paragraphs, was obtained independently of the entry into the premises and demonstrated sufficient probable cause for the warrant.

We find no procedural error in the judge's decision permitting the State to supplement the record through Wilson's testimony. In fact, in light of what was revealed--the chronology of when she received certain information vis-à-vis when she entered the premises--the testimony was critical to a thorough review of the issues presented. Defendant actually benefited from the hearing because it forced the State to justify the issuance of the warrant in light of the actual temporal sequence of events, something that was not obvious from the affidavit itself.

We believe the issue is fully resolved by utilizing the guidance provided in State v. Holland, 176 N.J. 344 (2003), where the Supreme Court held

[W]e adopt the following framework to be applied when evaluating the independent-source doctrine . . . . First, the State must demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information. It must make that showing by relying on factors wholly independent from the knowledge, evidence, or other information acquired as a result of the prior illegal search. Second, the State must demonstrate in accordance with an elevated standard of proof, namely, by clear and convincing evidence, that the police would have sought a warrant without the tainted knowledge or evidence that they previously had acquired or viewed. Third, regardless of the strength of their proofs under the first and second prongs, prosecutors must demonstrate by the same enhanced standard that the initial impermissible search was not the product of flagrant police misconduct. [Id. at 360-61.]

Viewed in this light, we agree that the motion was properly denied.

First, excising paragraphs V., W., and X. from the affidavit still leaves an abundance of probable cause that justified the warrant's issuance. We need not recite all the facts again. Second, the State would have sought a warrant after Wilson conducted her further interviews of the various witnesses even if she never went inside 1135 South 8th Street. This conclusion is compelled by the fact that Wilson actually conducted the interviews after she made the warrantless entry and included this information in the affidavit prior to actually seeking the warrant.*fn2 Third, Wilson's conduct was not a flagrant abuse of her power. The judge concluded that she acted in accordance with the emergency aid doctrine which "requires that public safety officials possess an objectively reasonable basis to believe . . . that there is a danger and need for prompt action." Frankel, supra, 179 N.J. at 599. We decline the opportunity to address whether application of the doctrine provides a separate rationale for denying the motion. The judge's findings in this regard, however, are indicative of his conclusion that Wilson's actions were not the product of "flagrant police misconduct." The motion to suppress was properly denied.

II.

Defendant argues that the motion judge erred in determining that he made a knowing, informed, and voluntary waiver of his Miranda*fn3 rights prior to making certain statements to Wilson and Lieutenant Arthur Folks, also of the prosecutor's office. Defendant claims that his "will was overborne" by the officers and that the place of interrogations, first in a Florida jail, and subsequently in the Camden County Prosecutor's Office, were "inherent[ly] coerci[ve]." We reject these arguments and conclude the statements were properly admitted.

At a separate pre-trial hearing conducted on January 4, 2007, Wilson testified that she interviewed defendant on September 7, 2003 in the Hillsborough County Jail following his arrest in Florida on drug charges. She read him his Miranda rights from a form, defendant stated he understood, signed the form, and indicated he waived those rights and was willing to speak to the officers. The interview lasted approximately three hours, during which Wilson testified that defendant gave conflicting oral statements regarding his knowledge of Mora-Batista and the crime. At one point, she told defendant "that his story wasn't believable" in light of other evidence, and defendant changed his story. However, defendant never indicated that he wished to stop the interview, leave the room, or wished to speak to an attorney.

By September 17, 2003, defendant had been extradited from Florida to New Jersey to face terroristic threats charges unrelated to the Mora-Batista homicide. Folks testified at the pre-trial hearing that he went to the Camden County Correctional Facility, took custody of defendant, and brought him to the prosecutor's office. He read defendant his Miranda rights once again from a form, defendant indicated he understood his rights, signed the form, and agreed to waive those rights and speak to Folks. Folks admitted telling defendant that his initial statements were unbelievable in light of other evidence, and that it was in defendant's "best interests" to tell the truth. Ultimately, Folks assisted Wilson in taking a taped statement from defendant that was admitted in evidence at trial. The judge considered all the evidence adduced at the pre-trial hearing and concluded that defendant's waivers were voluntarily and knowingly made. We agree.

Our review of the judge's decision to admit defendant's statements is limited to considering whether, viewing the totality of the circumstances, there was "sufficient, credible, evidence" that defendant voluntarily waived his Miranda rights. State v. Knight, 183 N.J. 449, 468 (2005). The evidence in this case is substantial, and the arguments raised by defendant are without sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).

III.

We next consider the arguments defendant raises in Points III and VI, neither of which were presented below. Therefore, we review the contentions by applying the plain error standard.

R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971)(the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached").

At trial, four stipulations were read seriatim to the jury at the end of the state's case. First, the State and defendant agreed that if called as a witness, the medical examiner who performed the autopsy on Mora-Batista would offer certain opinions, including that the he had died from gunshot wounds.

Next, the parties agreed that if called as a witness, Sergeant Cowden of the New Jersey State Police Ballistics unit would testify as to certain findings he made regarding bullets and bullet fragments recovered by investigators. Third, the parties agreed that if called as a witness, Tracey Pursell, an employee of the State Police Special and Technical Services Section, would testify that certain forensic specimens obtained from 1135 South 8th Street tested positive for the presence of blood. The last stipulation was that if called as a witness, Jennifer Thayer of the State Police Forensic Sciences DNA Laboratory would testify that these forensic specimens were subjected to DNA testing and those tests were inconclusive for various reasons.

Following the reading of the stipulations, the judge gave an immediate instruction advising the jurors that they were the "triers of fact" in the case, "[e]xcept when it comes to stipulations." He told the jury, "You have to accept the contents of each of those four stipulations as being true." The judge repeated that instruction during his final jury charge.

Prior to commencing their deliberations, the judge told the jury, It's five after 3:00. I am not going to hold you here past 5:00 o'clock. There is supposed to be some kind of snow tonight. So, if you have not reached your verdict by then, I would ask you to come back tomorrow morning . . . and continue in deliberations. At 5:01 p.m., the jury returned its verdict.

Defendant argues that the trial court's instructions on the stipulations were "capable of misleading the jury because [the jury] was not specifically instructed that it was free to reject one or all of the stipulations." Defendant further contends that the judge's comments at the beginning of jury deliberations "had the capacity to coerce the jury to return its verdicts before the end of the day . . . ." We find both arguments unavailing.

We have noted that "in a criminal case, the jury is not bound by stipulated facts." State v. Wesner, 372 N.J. Super. 489, 494 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). "[I]f facts are stipulated, the judge should not tell the jurors that they are 'bound' by such stipulated facts, if to do so would result in a directed verdict of any element of an offense charged." Id. at 491. A faulty jury charge will not result in reversible error, however, if it "does not constitute directing a verdict," and is otherwise ameliorated by proper charges advising "the jury that it was required to find every element of every charge proven beyond a reasonable doubt in order to convict defendant, that the burden never shifts to the defendant, and that the State has the burden of proving defendant guilty beyond a reasonable doubt." Id. at 494.

In this case, the judge's instruction regarding the stipulation was improper, but it does not constitute reversible error. First, with the exception of the State's need to prove the cause of Mora-Batista's death, the facts contained in the stipulations, while relevant evidence, did not relate specifically to any necessary element of the crimes with which defendant was charged. Second, the judge appropriately charged the jury in all other respects as to the elements of the various crimes, the State's burden of proof, and the presumption of innocence, all of which serves to remove any doubt that the jury was led astray by the faulty charge as to the stipulations.

As to the judge's scheduling comments, we find nothing coercive about them. They were made before any deliberations commenced and not in the context of interrupting ongoing deliberations. Even when deliberations are interrupted, we have held that plain error does not result if the judge was attempting to accommodate the needs of the jury. See State v. Tarlowe, 370 N.J. Super. 224, 238 (App. Div. 2004)(holding 1) judge's interruption at 5:00 p.m. after two hours of deliberation; 2) his inquiry into whether the jury wished to continue deliberating that night or return the following week to continue; and 3) the decision to permit the jury to continue to deliberate until a verdict was reached that night was not error). In this case, the judge was simply advising the jury of the schedule for deliberations and he did not coerce a verdict.

IV.

Defendant contends that the sentence imposed was "manifestly excessive," and that he was denied the opportunity to speak at the time of sentencing. The State concedes that the judge never provided defendant with the opportunity to speak prior to imposing sentence as required by Rule 3:21-4(b). We therefore remand the matter to the trial judge to permit defendant's allocution and re-sentencing. See State v. Cerce, 46 N.J. 387, 395-97 (1966) (recognizing a defendant's right to speak at sentencing and holding that the issue must be raised on direct appeal and a remand is appropriate even without a showing of prejudice). In light of our remand, we do not consider the merits of defendant's argument that his sentence was excessive.

V.

We find defendant's argument that his motion for a new trial was improperly denied to be of insufficient merit as to warrant any extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.

Defendant argued below, as he does now, that the jury's verdict, acquitting him of murder and convicting him of aggravated manslaughter, was inconsistent particularly in view of the State's theory of the case. The State argued at trial that defendant knew Mora-Batista was coming to Trenton to collect his money for the drugs he delivered days earlier, that defendant and some friends lay in wait for his arrival, and that they purposely shot and killed him.

Defendant's version of the events, supplied through the various oral and written statements he made to the investigators, was that he was frightened of physical harm as a result of speaking to Mora-Batista on the phone. He enlisted a friend, whom he knew only as "Jay," who in turn enlisted the assistance of two other unnamed men, to provide protection for any meeting with Batista. Defendant's written statement alleged that Batista arrived, was irate, entered the house, and made a motion toward his side. Defendant claimed that Jay and one of the men shot him dead.

Defendant argues that the jury's verdict was an implicit rejection of the State's case, and an implicit acceptance of his self-defense claim, and his motion for a new trial should have been granted. The trial judge rejected defendant's claim, finding the evidence sufficient to prove the charge of aggravated manslaughter.

"The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; State v. Perez, 177 N.J. 540, 555 (2003). To the extent defendant argues the jury's verdicts were inconsistent, it has long been recognized that inconsistent and illogical verdicts are accepted. State v. Lopez, 187 N.J. 91, 102 (2006) (internal quotations omitted). Consistency is not required as long as the evidence supporting the particular charge is sufficient to convict the defendant beyond a reasonable doubt. Ibid.

We have not recited the evidence adduced at trial in any detail, but it suffices to say that it was overwhelming. Defendant's self-serving versions of the events inside 1135 South 8th Street were inconsistent with each other and supplied the only facts supporting his claim of self-defense. The jury was free to accept or reject, fully or partially, any of the State's evidence, including defendant's various statements to the police. The sole question is whether there was sufficient evidence in the record which, if believed by the jury, could prove aggravated manslaughter beyond a reasonable doubt. Here, the jury could have accepted portions of defendant's various statements that supported a conclusion that he lacked the requisite mental state for murder--purposely or knowingly--and instead acted recklessly. State v. Bowens, 108 N.J. 622, 627-30 (1987). The motion for a new trial was properly denied.

In sum, we affirm defendant's conviction. We remand for re-sentencing solely to permit defendant to allocute prior to the imposition of sentence. We do not retain jurisdiction.


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